Opinion
No. HHB CV 05 5000242 S
February 3, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ( #132)
This matter appeared before the court at the short calendar on January 17, 2006, where the court heard oral argument. For the reasons stated below, the defendant City of New Britain's (City) motion for summary judgment as to the first count of the plaintiff's amended complaint is granted.
I BACKGROUND
In the first count of his amended complaint (#116) (complaint), the plaintiff, Zygmont Dworak, alleges that, on August 11, 2003, in New Britain, he was walking northbound along Emmons Place and was attempting to step onto the sidewalk to walk eastbound along the southern side of West Main Street when he was caused to trip and fall due to an unsafe and defective condition on the public sidewalk, an exposed metal pole, which was sticking out of the sidewalk along West Main Street. He alleges that, as a result of the City's breach of duty, pursuant to General Statute § 13a-149, in one or more respects, he suffered personal injuries.
In the summons the plaintiff's first name is listed as "Zygmont," while in the complaint it is spelled as "Zygmunt."
In its motion, the City argues that the City did not have a duty to maintain the area where Dworak alleges that he fell. In support of the motion, the City submits the affidavit of Patrick Toscano, its City Surveyor. The City also referred the court to Dworak's responses to the co-defendants, Joseph J. Gustin and Dolores K. Gustin, d/b/a Gustin Real Estate Insurance's (Gustins) requests for admissions, dated October 3, 2005 (#121), in which Dworak stated that be was not sure that the allegedly defective condition was on the public sidewalk.
In response, Dworak provided no affidavit in opposition. Besides presenting a copy of Toscano's affidavit, the only exhibit submitted by him was a copy of the answer and special defenses filed by the defendants Joseph J., and Delores K. Gustin, dated August 23, 2005 (#107).
II STANDARD OF REVIEW
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . ." Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005). "The test for granting summary judgment is whether the moving party would be entitled to a directed verdict on the same facts." Wilson v. New Haven, 213 Conn. 277, 279-80, 567 A.2d 829 (1989).
"[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan. v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). "[T]he court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
III DISCUSSION
Dworak's first count is brought against the City, claiming relief under General Statutes § 13a-149. In Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001), our Supreme Court reiterated that "[a] town is not liable for highway defects unless made so by statute." (Internal quotation marks omitted.) It noted also that "in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy." Id.
General Statutes § 13a-149 provides: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby."
"The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective `road or bridge' and (2) the party whom the plaintiff is suing must be the `party bound to keep [the location where the injury was sustained] in repair.'" Novicki v. City of New Haven, 47 Conn.App. 734, 739-40, 709 A.2d 2 (1998).
There is no material dispute between the parties as to the location of the plaintiff's alleged fall. In the complaint, paragraph 2, he states that he was walking northbound on Emmons Place and attempting to step onto the sidewalk to walk eastbound on West Main Street "when he was caused to trip and fall due to an unsafe condition on said public sidewalk, specifically an exposed metal pole which was sticking out of the sidewalk along West Main Street . . ."
As noted, the City submitted the affidavit of Patrick Toscano, a licensed land surveyor in Connecticut. See affidavit of Patrick Toscano, ¶ 4. In Toscano's affidavit, the City's surveyor avers that he "examined and inspected the area of plaintiff's fall which is located on Emmons Place at its intersection with West Main Street . . ." See affidavit of Patrick Toscano, ¶ 6. "Emmons Place is a private road." See affidavit of Patrick Toscano, ¶ 7. He also states that "[t]he area of plaintiff's fall is on private property owned by Joseph J. and Delores K. Gustin." See affidavit of Patrick Toscano, ¶ 9. Further, he states that "[t]he metal pole referenced in plaintiff's complaint is a reinforcement bar for a retaining wall which runs alongside the property of . . . Joseph J. and Delores K. Gustin." See affidavit of Patrick Toscano, ¶ 11. He also avers that "[t]he retaining wall is owned by . . . Joseph J. and Delores K. Gustin." See affidavit of Patrick Toscano, ¶ 12. He also states that the area of Dworak's fall is not within the City's right of way. See affidavit of Patrick Toscano, ¶ 8.
In addition to providing Toscano's affidavit, the City also refers the court to Dworak's responses to defendants Joseph J. and Delores K. Gustin's requests for admissions, dated October 3, 2005 (#121), wherein he stated that he was "not sure if the condition was on the public sidewalk."
Dworak submitted no affidavit in response to the City's presentation. Instead, he refers the court to the answer and special defenses filed by the defendants Joseph J. and Delores K. Gustin, dated August 23, 2005 (#107), specifically paragraph 1 of their answer to Dworak's original fourth count, as set forth in his July 7, 2005 complaint, in which they state that they "deny that they were in possession and control of, or were responsible for the care and maintenance of, the sidewalk that ran adjacent to said premises." "[S]aid premises" refers to the real property known as 144 West Main Street, which they admit that they owned on the date of Dworak's alleged fall. This denial does not constitute evidence which contradicts Toscano's affidavit. Also, it does not even mention the "exposed metal pole."
In the amended complaint, Dworak's claim against the Gustins is set forth in his third count.
On the record before the court there is no genuine issue of material fact as to the location of the "exposed metal pole" which the plaintiff claims caused him to fall. Only one "exposed metal pole" is involved here.
Next, the court turns to the second § 13a-149 prerequisite, that the party sued must be the party bound to keep the alleged location in repair. Toscano's affidavit, as set forth above, provides evidence showing that the City had no duty to maintain the alleged location, since it was not within the City's right of way. See Ferreira v. Pringle, supra, 255 Conn. 350 ("[w]hether the place of injury is within the . . . right-of-way line is the threshold inquiry in determining whether the condition complained of falls under § 13a-149." (Internal quotation marks omitted.)); CT Page 3015 Drabik v. East Lyme, 234 Conn. 390, 391-96, 662 A.2d 118 (1995).
Thus, the City has presented evidence to show that Dworak's § 13a-149 claim against it cannot be sustained. Dworak provided no evidence to demonstrate the existence of some disputed factual issue as to a duty by the City to keep the alleged location in repair. The answer by the Gustins, quoted above, provides no evidence to contradict the City's evidentiary presentation showing that it did not have such a duty.
Dworak's reference to Doty v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000) is unpersuasive. That case did not involve a § 13a-149 claim. Also, there, the plaintiff presented evidence to support his contention that the defendant's predecessor in interest possessed or was in control of the premises at issue. See id., 58 Conn.App. 433-34. As discussed above, here there is no such evidence before the court as to the City.
Under these circumstances, the City has met its burden on the motion.
CONCLUSION
For the foregoing reasons, the City has shown that it is entitled to judgment as a matter of law. Accordingly, its motion for summary judgment as to Dworak's first count is granted. It is so ordered.